SUNIL UDDHAV DHOTRE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This Revision Application is filed by the applicant/accused against the judgment and order dated 30/7/1999 passed by the learned Sessions Judge, Greater Bombay thereby confirming the judgment of conviction of the Additional Chief Metropolitan Magistrate convicting the accused for the offence punishable under section 406 sentencing him to suffer R.I.for three months, fine of Rs.15,000/- i/d to suffer S.I.for five months. The applicant/ accused was the share broker and the complainant and other two witnesses have handed over their shares for sale and one witness has given the amount of Rs.18,170/- to purchase the shares. However, these shares were not either returned or the amount of sale was also not given to the respective witnesses. Hence the complaint was lodged and the prosecution was launched against the applicant/accused.

(2.) The learned counsel appearing for the applicant/accused has challenged the order on the ground that the ingredients of the offence punishable under section 406 of the Indian Penal Code i.e.criminal misappropriation of the property are not proved by the prosecution and the learned Judges J.M.F.C.and the Sessions Judge have committed an error in holding that the offence of misappropriation has taken place. He has submitted that the prosecution could not prove the conversion of the property or shares were not found in possession of the applicant/accused. It was argued that the admission on the part of the investigating officer and the defence adopted by the accused is that when he was dispossessed by the landlord his all belongings were lying outside including the shares of this witness and they were misplaced.

(3.) In support of his submissions he has relied on Sardarsingh Vs. State of Haryana, 1977 AIR(SC) 1766 and L.Dhanya Naik Vs. State of Karnataka, 1977 CrLJ 654 in which it is held that mere failure or omission to return the property is not sufficient to constitute the offence under section 409 of the Indian Penal Code.